Thomas v Crown Prosecution Service

Section 113 of the Magistrates' Courts Act 1980 gives a convicted person an entitlement to apply to the magistrates’ court for bail pending an appeal to the Crown Court. Where a properly constituted application is made, the magistrates’ court has a duty to consider it promptly. The court cannot refuse to hear the application because the applicant has been convicted, because bail is also available from the Crown Court, or because hearing it would use court resources. The merits of bail are distinct from the entitlement to have the application considered. The duty does not require an oral hearing in every case, nor does it entitle an applicant to insist on a particular judge, Bench or hearing time.

The appellant was convicted at Greenwich Magistrates' Court of an offence under section 4 of the Protection from Harassment Act 1997 and sentenced to 18 weeks’ imprisonment. Immediately after sentence, his advocate indicated that an application might be made for bail pending an appeal against sentence. The district judge directed that any application should be made to the Crown Court and refused to hear it when it was subsequently made.

The case was stated for the opinion of the Divisional Court. The questions were whether section 113 of the Magistrates' Courts Act 1980 created an entitlement to apply for bail pending appeal and whether it imposed an obligation on the magistrates’ court to hear such an application.

1. Appeal allowed on the case stated. Section 113 of the Magistrates' Courts Act 1980 confers jurisdiction on the magistrates’ court to grant bail where a person has given notice of appeal to the Crown Court. It creates an entitlement to apply for bail pending appeal where a properly constituted application is made.
2. The magistrates’ court has a duty to consider such an application. The duty arises whether the application is made to the sentencing tribunal or otherwise. The court cannot decline jurisdiction on the basis that the applicant has been convicted, that there is no presumption in favour of bail under section 4 of the Bail Act 1976, or that the application could instead be made to the Crown Court.
3. The district judge had pre-judged the application. She could not know the grounds of the application in advance, and had confused the merits of bail with the separate question whether the application had to be considered. The immediate custodial sentence did not determine the position pending an appeal against sentence.
4. The case-management powers in the Criminal Procedure Rules 2014 did not authorise the magistrates’ court to refuse to hear a properly constituted application. The Rules contemplated bail applications being made in the magistrates’ court and could not override the jurisdiction conferred by primary legislation.
5. The duty is to consider the application promptly, given that liberty is at stake. It does not entitle an applicant to insist on a particular judge or Bench, or on a hearing at a particular time. An oral hearing is not required in every case. If the application is made after the day of sentence, it may be more appropriate to apply to the Crown Court; the circumstances of each case determine the practical course.

The questions were answered accordingly. An order for detailed assessment of the appellant’s legally aided costs was made.

• Greenwich Magistrates' Court: convicted the appellant and imposed an immediate sentence of 18 weeks’ imprisonment. The district judge refused to hear an application for bail pending an appeal against sentence.
• High Court (Administrative Court): answered the stated questions in favour of the appellant and held that the magistrates’ court had a duty to consider a properly constituted bail application.